Although
the Qur'an insists on the radical equality of all Muslims, caste (zat,
jati, biraderi) remains a defining feature of Indian Muslim society,
with significant regional variations. While the severity of caste among
the Indian Muslims is hardly as acute as among the Hindus, with the
practice of untouchability being virtually absent, caste and associated
notions of caste-based superiority and inferiority still do play an
important role in Indian Muslim society. In most parts of India, Muslim
society is based on the existence of numerous endogamous and generally
occupationally specific caste groups, that have their own caste appellations.
This disjunction between Qur'anic egalitarianism and Indian Muslim social
practice has been theorized by Muslim scholars in different ways. While
some have sought to reconcile the two by interpreting the scripturalist
sources of Islam to support social hierarchy, others have pointed out
that the continued existence of caste-like features in Indian Muslim
society is a flagrant violation of the Qur'anic worldview.

Most studies of
caste in India deal with the classical Hindu caste system or with its
present forms among the Hindus. Since caste is the basis of the Hindu
social order and is written into the Brahminical texts, studies of caste
have been largely Hindu-centric. Following from this, the existence
of caste-like features among non-Hindu, including Muslim, communities
in India is thus generally seen as a result of the cultural influence
on these communities of their Hindu neighbours or of Hinduism itself.
This claim is based on the untenable assumption of a once pure, radically
egalitarian Muslim community in India later coming under the baneful
impact of Hinduism. However, as several studies on caste among the Indian
Muslims have shown, while the influence of Hindu social mores on the
Muslims might partially explain the continued salience of caste among
them it does not fully explain how the Muslims of the region came to
be stratified on the basis of caste in the first place. It also ignores
the role of sections of the 'ulama, scholars of Islamic jurisprudence,
in providing religious legitimacy to caste with the help of the concept
of kafa'a.

This article begins
with a brief note on caste among the Indian Muslims, seeking to provide
an explanation of the phenomenon based on the historical evolution of
the Muslim community in India. It then looks at how, through the notion
of kafa'a, caste and caste-based social hierarchy were sought to be
accepted as normative and binding by important sections of the 'ulama.
Through an examination of a text penned by a contemporary Indian Muslim
scholar it then provides a critique of widely-held notions of kafa'a
and caste based on the principle of Qur'anic egalitarianism.

Caste Among the Indian Muslims

The vast majority
of the Indian Muslims are descendants of converts from what is today
called 'Hinduism'. Individual conversions to Islam in medieval times
were rare. Rather, typically, entire local caste groups or significant
sections thereof underwent a gradual process of Islamisation, in the
course of which elements of the Islamic faith were gradually incorporated
into local cosmologies and ritual practice while gradually displacing
or replacing local or 'Hindu' elements. In other words, conversion was
both a social as well as a gradual process. Because it was a collective
social process, the original endogamous circle prior to conversion was
still preserved even after the group undergoing the process had witnessed
a significant degree of cultural change. Hence, even after conversion
to Islam marriage continued to take place within the original caste
group. This is how Muslim society came to be characterized by the existence
of multiple endogamous caste-like groups. Because mass
conversion to Islam was also rarely, if ever, a sudden event, but, rather,
generally took the form of a gradual process of cultural change, often
extending over generations, many of the converts retained several of
their local, pre-Islamic beliefs and practices. It was thus not the
influence of Hinduism among a previously 'pure', 'uncontaminated' Muslim
community as such, but, rather, the continued impact of Hindu beliefs
and customs on the converts who still remained within a largely Hindu
cultural universe and retained many of its associated beliefs and practices,
that explains the continued hold of caste-related practices and assumptions
among large sections of the Indian Muslim community.

The Ashraf-Ajlaf
Divide

Scholarly writings
on caste among Indian Muslims generally note the division that is often
made between the so-called 'noble' castes or ashraf and those labeled
as inferior, or razil, kamin or ajlaf. The ashraf-ajlaf division is
not the invention of modern social scientists, for it is repeatedly
mentioned in medieval works of ashraf scholars themselves. To these
writers, Muslims of Arab, Central Asian, Iranian and Afghan extraction
were superior in social status than local converts. This owed not just
to racial differences, with local converts generally being dark-skinned
and the ashraf lighter complexioned, but also to the fact that the ashraf
belonged to the dominant political elites, while the bulk of the ajlaf
remained associated with ancestral professions as artisans and peasants
which were looked down upon as inferior and demeaning.

In order to provide
suitable legitimacy to their claims of social superiority, medieval
Indian ashraf scholars wrote numerous texts that sought to interpret
the Qur'an to suit their purposes, thus effectively denying the Qur'an's
message of radical social equality. Pre-Islamic Persian notions of the
divine right of kings and the nobility, as opposed to the actual practice
of the Prophet and the early Muslim community, seem to have exercised
a powerful influence on these writers. A classical, oft-quoted example
in this regard is provided by the Fatawa-i Jahandari, written by the
fourteenth century Turkish scholar, Ziauddin Barani, a leading courtier
of Muhammad bin Tughlaq, Sultan of Delhi. This text is the only known
surviving Indo-Persian treatise exclusively devoted to political theory
from the period of the Delhi Sultanate.

The Fatawa-i Jahandari
shows Barani as a fervent champion of ashraf supremacy and as vehemently
opposed to the ajlaf. In appealing to the Sultan to protect the ashraf
and keep the ajlaf firmly under their control and submission he repeatedly
refers to the Qur'an, from which he seeks to derive legitimacy from
his arguments. His is not a rigorous scholarly approach to the Qur'an,
however, for he conveniently misinterprets it to support the hegemonic
claims of the ashraf, completely ignoring the Qur'an's insistence on
social equality. In the process, he develops a doctrine and social vision
for the ideal Muslim ruler, which, in their implications for what Barani
calls the 'low-born', are hardly different in their severity than the
classical Hindu law of caste as contained in the Manusmriti, the Brahminical
law code. As Barani's translator, Mohammad Habib, writes, 'Barani's
God, as is quite clear from his work, has two aspects-first, he is the
tribal deity of the Musalmans; secondly, as
between the Musalmans themselves, He is the tribal deity of well-born
Muslims'.[1] Barani was not a lone voice in his period, however, for
he seems to echo a widely shared understanding of ashraf supremacy held
by many of his ashraf contemporaries, including leading 'ulama and Sufis.

Barani's disdain
for the 'low' born is well illustrated in his advice to the Sultan about
education of the ajlaf. While the Qur'an and the traditions attributed
to the Prophet repeatedly stress the need for all Muslims, men and women,
rich and poor, to acquire knowledge, Barani insists that the Sultan
should consider it his religious duty to deny the ajlaf access to knowledge,
branding them as 'mean', and 'despicable'. Thus, he advises the Sultan:

Teachers of every
kind are to be sternly ordered not to thrust precious stones down the
throats of dogs or to put collars of gold round the necks of pigs and
bears-that is, to the mean, the ignoble and the worthless, to shopkeepers
and to the low-born they are to teach nothing more than the rules about
prayer, fasting, religious charity and the haj pilgrimage, along with
some chapters of the Qur'an and some doctrines of the faith, without
which their religion cannot be correct and valid prayers are not possible.
But they are to be taught nothing else, lest it bring honour to their
mean souls.[2]

As Barani sees it,
if the ajlaf were allowed access to education, they might challenge
ashraf hegemony. Therefore, he sternly warns the Sultan:

They are not to
be taught reading and writing, for plenty of disorders arise owing to
the skill of the low born in knowledge. The disorder into which all
affairs of the religion and the state are thrown is due to the acts
and words of the low born, who have become skilled. For, on account
of their skill, they become governors (wali), revenue-collectors ('amils),
auditors (mutassarif), officers (farman deh) and rulers (farman rawa).
If teachers are disobedient, and it is discovered at the time of investigation
that they have imparted knowledge or taught letters or writing to the
low born, inevitably the punishment for their disobedience will be meted
out to them.[3]

In order to bolster
his assertion that the Sultan should ensure that the ajlaf remain subservient
to the ashraf, Barani seeks appropriate religious sanction. Thus, he
asserts:

[.] to promote base,
mean, low-born and worthless men to be the helpers and supporters of
the government has not been permitted by any religion, creed, publicly
accepted tradition or state-law.[4]

He then goes on
to elaborate a theory of the innate inferiority of the ajlaf, the superiority
of the ashraf and the divine right of the Sultan to rule, based on a
distorted interpretation of Islam. Thus, he writes that the 'merits'
and 'demerits' of all people have been 'apportioned at the beginning
of time and allotted to their souls'. Hence, people's acts are not of
their own volition, but, rather, an expression and result of of 'Divine
commandments'. God Himself, Barani claims, has decided that the ajlaf
be confined to 'inferior' occupations, for He is said to have made them
'low born, bazaar people, base, mean, worthless, plebian, shameless
and of dirty birth'. God has given them 'base' qualities, such as 'immodesty,
wrongfulness, injustice, cruelty, non-recognition of rights, shamelessness,
impudence, blood-shedding, rascality, jugglery and Godlessness' that
are suitable only for such professions. Furthermore, these base qualities
are inherited from father to son, and so the
ajlaf must not attempt to take up professions reserved by God for the
ashraf even if they are qualified to do so, for this would be a grave
violation of the Divine Will. Likewise, Barani claims, God has bestowed
the ashraf with noble virtues by birth itself, and these are transmitted
hereditarily. Hence, they alone have the right and responsibility of
taking up 'noble' occupations, such as ruling, teaching and preaching
the faith.[5]

Since God is held
to have made the ajlaf innately despicable and base, to promote them
would be a gross violation of the divine plan. 'In the promotion of
the low and low-born brings', Barani argues, ' there is no advantage
in this world, for it is impudent to act against the wisdom of Creation'.
Hence, he insists that if the Sultan confers any post in his court or
government service to the ajlaf, the 'court and the high position of
the king will be disgraced, the people of God will be distressed and
scattered, the objectives of the government will not be attained, and,
finally, the king will be punished on the day of Judgment'. In this
regard, he refers to a tradition attributed to the Prophet, according
to which Muhammad is said to have declared, 'The vein is deceptive'.
Although this tradition might be interpreted to suggest that one's social
status does not depend on one's heredity, Barani offers a novel explanation
of the tradition to suggest precisely the opposite conclusion,
that 'the good vein and the bad vein draw towards virtue and vice',
and that 'in the well-born and the noble only virtue and loyalty appear,
while from the man of low birth and bad birth only wickedness and destruction
originate'. Likewise, he provides a novel interpretation of a Qur'anic
verse (xlix: 13) to support his claim of ashraf superiority. He quotes
the Qur'an as saying that God honours the pious, a statement that has
generally been read to suggest that superiority in God's eyes depends
on one's piety and not birth, to arrive at precisely the opposite conclusion.
The verse, he says, implies that '[.] it ought to be known that in the
impure and impure-born and low and low-born, there can be no piety'.[6]

As Barani's writings
on the ajlaf so clearly suggest, many medieval ashraf scholars shared
a common understanding of the 'low-born' as born to serve the ashraf.
Accordingly, to leigitimize this claim they interpreted the Qur'an as
sanctioning a sternly hierarchical social order, with the subordinate
status of the ajlaf ascribed to the Divine Will. As H.N.Ansari, a contemporary
Indian Muslim scholar and an activist of a 'low' caste Muslim organization,
remarks, this represented a profoundly 'un-Islamic' reading of the Qur'an,
which stresses the equality of all Muslims and lays down piety as the
only criterion for merit in God's eyes. Yet, Ansari adds, men like Barani
exercised a powerful influence in their times with their wrong interpretations
of the Qur'an, resulting in the 'complete betrayal of the Qur'anic precepts
of brotherhood'.[7]

To imagine, as some
writers today assert, a solidly egalitarian Muslim community pitted
against a sternly hierarchical Hindu community in medieval India is
thus hardly convincing. Nor, for that matter, is the explanation of
the existence of caste and social hierarchy among Muslims as a result
of the baneful impact of hierarchical Hinduism on egalitarian Islam.
Although the impact of the wider Hindu society on the beliefs and practices
of the Muslims is obvious, in the face of hierarchical notions of religion
and the normative social order as reflected in the writings of Barani,
it is obvious that the Muslim elite played an equally central role in
promoting and preserving social hierarchy by seeking to provide it with
suitable 'Islamic' sanction. The effort to legitimize caste in 'Islamic'
terms was given further impetus by the 'ulama through the notion of
kafa'a, to which we now turn.

Kafa'a and the Legitimisation of Caste by the Indian 'Ulama

The Qur'an and the
genuine Prophetic traditions consider Muslims as equals, and hence allow
for any Muslim to marry a suitable Muslim spouse. In deciding an ideal
marriage partner the Qur'an suggests the criteria of piety (taqwa) and
faith (iman), regarding these, rather than birth or wealth, as the only
mark of a person's nearness to God. It is clear from the records of
the Prophet and his companions that this principle was actually acted
upon. Thus, for instance, we hear of instances of slave men or recently
freed slaves marrying free women with the Prophet's consent.

Over time, however,
as Islam spread to new regions outside the confines of the Arabian peninsula,
the early egalitarian Muslim society was transformed into a complex,
sharply hierarchical social order. This owed to several factors, including
the 'feudalisation' of Islam accompanying the emergence of the Ummayad
empire; the incorporation of non-Arab groups as subordinate 'clients'
(mawali) of ruling Arab tribes; and the impact of other cultures, particularly
Greek and Persian, in which social hierarchies were already deeply entrenched.
These developments exercised a propound influence on the emerging schools
of Islamic law (mazahib). As a result, notions of social hierarchy based
on birth that were foreign to the Qur'an and to the early Muslim community
were gradually incorporated into the corpus of writings of Islamic jurisprudence
or fiqh.

One manifestation
of this was the central importance that the fuqaha or scholars of the
different schools of Islamic jurisprudence now began paying to the notion
of equality of status in matters of marriage or kafa'a. Elaborate rules
were constructed built on the notion of kafa'a that specified the 'equals'
whom one could legitimately marry. Taking a spouse from outside one's
kafa'a was sternly frowned upon, if not explicitly forbidden by the
fuqaha. In the face of Qur'anic and genuine Prophetic traditions that
stressed that the only basis for selecting one's marital partner was
piety, the scripturalist sources of Islam were suitably misinterpreted
to provide legitimacy for notions of kafa'a based on wealth and birth,
including ethnicity.

These debates on
kafa'a have a direct bearing on how the Indian Muslim 'ulama have looked
at the question of caste, caste endogamy and inter-caste relations.
Since the vast majority of the Indian Muslims follow the Hanafi school,
the opinions of the classical Hanafi 'ulama on kafa'a continue to determine
the attitudes of the Indian 'ulama on the question of caste and social
hierarchy. Most Indian Hanafis seem to have regarded caste (biraderi),
understood here as hereditary occupational group, as an essential factor
in deciding kafa'a, and in this way have provided fiqh legitimacy to
the notion of caste.

The detailed debates
among the fuqaha of the law schools about kafa'a need not detain us
here, and it is sufficient to mention that they differed somewhat on
the criterion for deciding it. 'Abdul Hamid Nu'mani, a contemporary
Indian Muslim scholar, writes that many classical fuqaha considered
the following issues to decide one's kafa'a for purposes of marriage:
legal status as free or enslaved (azadi); economic status (maldari);
occupation (pesha); intelligence ('aql); family origin or ethnicity
(nasb); absence of bodily defects and illness; and, finally, piety (taqwa).[8]
All these are said to have been deciding factors for kafa'a for the
Hanafis and the Hanbalis, while according to Imam Malik, the real basis
of kafa'a is said to have been piety. Imam Shafi' is said not to have
included wealth in kafa'a. On the whole, however, most fuqaha insisted
on taking factors other than simply piety in deciding kafa'a.[9] In
the Indian context, this expanded notion of kafa'a, representing a
considerable departure from the Qur'an, was accepted as laying down
the norms for deciding on the legality of a Muslim marriage. By restricting
marriage to one's occupational and ethnic group, caste, which is, in
theory, an endogamous birth-based occupational category, came to be
regarded as essential to establishing kafa'a for purposes of marriage.
In this way, the notion of kafa'a helped to provide legitimacy to the
existence of caste among the Indian Muslims by effectively restricting
marriage within the endogamous caste circle. This is readily apparent
even in the fatwa literature produced by several recent Indian 'ulama,
an issue that we now look at.

To illustrate the
ways in which significant sections of the Indian 'ulama have sought
to employ the concept of kafa'a to legitimize caste and social inequality
I focus here on a slim Urdu tract on the subject penned by a contemporary
Indian Muslim scholar, Maulana 'Abdul Hamid Nu'mani. A senior leader
of the Jami'at ul-'Ulama-i Hind ('The Union of the 'Ulama of India),
Nu'mani belongs to the Ansari caste of hereditary weavers, traditionally
considered by ashraf Muslims as 'low' in social status. His tract is
a modified version of a speech that he delivered in 1994 at the request
of the Anjuman Khuddam al-Qur'an, a Muslim missionary organization based
at the town of Vaniyambadi in the southern Indian state of Tamil Nadu.
The Anjuman had invited him to deliver a lecture on the subject of Islamic
mission (tabligh) and the question of kafa'a, for the Anjuman had itself
discovered that one of the major hurdles in its missionary outreach
work among the low-caste Hindus of the area was that while the converts
were readily accepted as religious equals by other Muslims, the latter
were unwilling, on grounds of kafa'a, to intermarry with them. For the
Anjuman, this problem appeared as a central concern for, by making the
life of the converts difficult, it made conversion to Islam an unviable
option for many. Accordingly, in order to clarify the 'true' Islamic
perspective on kafa'a and to oppose notions of kafa'a that legitimize
caste and social inequality, the Anjuman requested Nu'mani to deliver
a scholarly paper on the subject in the light of the teachings of the
Qur'an. The speech was apparently very well received, and was shortly
published as a booklet, suitably titled Masla-i Kufw Aur Isha'at-i Islam
('The Problem of Kafa'a and the Spread of Islam').

Nu'mani beings his
tract by arguing that the single most important factor for the spread
of Islam in India was the Qur'an's message of radical social equality
(masavat) and respect for all humankind (ihtiram-i admiyat). This naturally
appealed most to the downtrodden 'low' castes who were sternly oppressed
by the Brahminical religion and the caste system on which it was based.
The Sufis who propagated Islam among the 'low' castes are said to have
been seriously committed to their welfare, but because their scale of
work was so immense they were unable to properly tend to the proper
Islamic instruction of their neophytes. Therefore, Nu'mani says, the
converts retained several of their pre-Islamic beliefs and practices,
including notions of caste. Further, he writes, caste and related concepts
of birth-based ritual status were given added legitimacy by Muslim rulers
and missionaries who had come to India from the lands of 'ajam, Iran,
Turkey and Central Asia, where concepts of social inequality were already
well entrenched.[10]

Nu'mani quotes extensively
from Barani's Fatawa-i Jahandari to show how discriminatory attitudes
towards low-caste converts were widely shared by medieval Muslim elites.
He also comments on the absence of any effective opposition to such
views. In fact, he goes so far as to claim that, 'From Barani's time
till 1947 the notion of Muslim society being divided into ashraf and
ajlaf, high and low, was continuously present'. He refers to some twentieth
century Indian 'ulama of his own Deobandi school as opposing caste-based
inequality among the Indian Muslims but laments that 'this sickness
has not as yet been fully eliminated'. He admits that although the caste
system is less severe among the Muslims than it is among the Hindus,
in that untouchability is absent among the former, with caste playing
a determining role only in marriage among Muslims. Yet, he pleads for
Muslims to combat notions of caste based superiority and inferiority,
for only then, he argues, can efforts to spread Islam among 'low' caste
Hindus be effective. For this purpose, he says, a radical revisioning
of the concept of kafa'a is urgently required.[11]

The remainder of
the text consists of an elaborate discussion of the notion of kafa'a.
In the process of developing a Qur'anic notion of kafa'a, Nu'mani surveys
notions of kafa'a as developed by the classical fuqaha and further elaborated
upon by various Indian 'ulama. Since his concern is to revive the original
Qur'anic notion of kafa'a, which alone he sees as normative and binding,
he engages in a process of ijtihad (although he does not refer to it
as such), refusing to remain tied down by formulations of kafa'a as
contained in the corpus of fiqh, including of the Hanafi school with
which he is associated. In evoking what he calls the true Islamic position
on kafa'a, he has four broad objectives. Firstly, to revive the original
message of radical social equality of the Qur'an which he sees many
later 'ulama as having distorted, willfully or otherwise. Secondly,
to combat caste-based divisions among the Muslims and thereby to promote
Muslim unity. Thirdly, to disprove claims of
critics that Islam is not an egalitarian religion and that, therefore,
it cannot provide equality to 'low' caste Hindu converts. Finally, to
provide an understanding of kafa'a that, being liberated from notions
of caste, can help in integrating converts into the mainstream of Muslim
society through inter-marriage and thereby remove a major hurdle in
the path of Muslim missionary work, particularly among 'low' caste Hindus.

In doing so, Nu'mani
has to deal with reports attributed to the Prophet and some of his close
companions that seem to legitimize social inequality, as well as the
writings of the classical fuqaha on the subject of kafa'a. As regards
certain hadith which seem to promote discriminatory attitudes towards
people who follow certain 'low' professions, Nu'mani subjects the lines
of transmission (isnad) as well as content (matn) of these reports to
close scrutiny, concluding that they are fabricated. He explains some
statements by the companions of the Prophet that militate against social
equality by reading them contextually, and hence argues that they are
not applicable for all time. On the restrictive provisions related to
kafa'a that the fuqaha have prescribed, Nu'mani insists that the Qur'an
and the genuine Hadith should be the sole criterion for judging them.
Since the corpus of fiqh is a post-Qur'anic development, and since the
fuqaha were mere mortals, although they might have been well intentioned,
Nu'mani suggests that Muslims should not blindly follow their prescriptions
if they violate the Qur'an and the genuine Hadith. However, rather than
opposing the opinions of the fuqaha directly he points to the differences
between the different schools of fiqh, and within each school the varying
opinions of different fuqaha, on the question of kafa'a, highlighting
those views that support his own radically egalitarian understanding
of kafa'a.

After providing
a brief note on the varying definitions of kafa'a in different schools
of Islamic jurisprudence, Nu'mani writes that according to the Qur'an,
kafa'a is based only on piety. Hence, the only criterion for deciding
a marriage partner should, ideally, be his or her personal character
and dedication to the faith. In other words, he suggests, there is no
religious bar for a Muslim man from a low caste or a low caste Hindu
convert to Islam to marry a Muslim girl from a high caste or vice versa.
This, of course, goes completely against dominant notions of kafa'a.
Nu'mani does not openly question the schools of fiqh as such. Rather,
he points to possibilities within the existing schools and to differences
among the fuqaha of the different schools as well as within each school
to press his claim for an egalitarian reading of kafa'a.

In arguing the case
for an egalitarian interpretation of kafa'a Nu'mani has to contend with
traditions that have been used by many scholars to insist on the need
for people to marry within their same social class. He does not deny
the veracity of such claims but interprets them in a novel way to bolster
his argument that cross-class marriages are to be regarded as legitimate
as well. Thus, for instance, he refers to a tradition according to which
the third caliph, 'Umar, refused to let a girl from a rich family to
marry a man from a lower class. Nu'mani does not say that the caliph
was wrong in his pronouncement. Rather, he says, his opinion was correct
because it might be difficult for such a girl to live in poor family
without the comforts to which she was used to before marriage. Hence,
for marital compatibility a rough equality of economic status is indeed
preferable. However, Nu'mani argues, this does not mean that a girl
from a rich family cannot marry a poor man or that
equality in economic status is an absolute necessity in marriage.[12]
Nu'mani recognizes that rough equality of economic status is preferable
in marriage partners, but insists that it is not absolutely essential.
To use 'Umar's decision to argue the case that marriage must take place
only within one's social class or caste, is therefore, untenable. Nu'mani
here quotes another, conflicting report attributed to 'Umar, according
to which the caliph declared that in deciding a man's marriage partner
he did not consider her ethnic or economic status.[13]

Likewise, on the
question of occupation (pesha) in determining kafa'a, Nu'mani writes
that many 'ulama have adopted what he calls an 'unnecessarily restrictive'
attitude, which has led to notions of caste superiority and inferiority
since caste is, in theory, also an occupational category. Nu'mani remarks
that this is particularly unfortunate, given that Imam Abu Hanifa, whose
school of jurisprudence most Indian Muslims claim to follow, did not
himself consider occupation as a factor in determining kafa'a. This
is because one's occupation does not always remain the same and can,
in theory, change. Nu'mani also refers to some Hanafi jurists who placed
knowledge ('ilm) above profession in deciding kafa'a, thereby allowing
a learned Muslim from a family following a 'low' profession to marry
a woman from a 'respectable' family.[14] On the other hand, Nu'mani
notes that some Hanafi 'ulama, including Imam Abu Yusuf, a student of
Abu Hanifa, did include occupation in deciding kafa'a, going
so far as to single out the profession of weavers, barbers and tailors
as 'despicable'. On the basis of this, Nu'mani says, numerous Hanafi
'ulama have issued fatwas declaring weavers, barbers and tailors to
be outside the kafa'a of those who pursue other, more 'respectable',
professions.[15] He notes that some fuqaha have adopted a somewhat less
severe position on the matter by declaring that if a weaver gives up
his profession and takes to trade, then he can be considered the kafa'a
of a trader and can marry a trader's daughter. Not all Hanafi 'ulama
were ready to provide this concession, however. Nu'mani refers to Ibn
Najim who opined that even if a person were to abandon a 'low' profession
he would not be able to remove the 'stains' that, allegedly, inevitably
form on his character from such an occupation and hence he cannot be
considered as the kafa'a of a person from a family that follows a 'respectable'
profession. Closer to our times, Nu'mani notes, Ahmad Raza Khan (1856-1921),
the founder of the Barelwi school, is said to have declared that weavers,
cobblers and barbers, even if learned in religion, could not be considered
the kafa'a of those following 'respectable' professions.[16] Hence,
Nu'mani remarks, the notion that one should not marry outside one's
occupational group, which in India is generally the caste group, is
widely accepted by many Indian Hanafi 'ulama.

In discussing the
Hanafi position on kafa'a being determined, among other factors, by
one's profession, Nu'mani writes that Hanafi 'ulama have resorted to
two sources to legitimize their argument. Firstly, popular custom or
'urf. By regarding caste-based occupation as a legitimate 'urf they
have sought to incorporate it into the corpus of fiqh. This, however,
says Nu'mani, is a gross violation of Islam and 'a conscious or unconscious
imitation of the Indian Brahminical social system'.[17] The other source
that the fuqaha have invoked to support their claim of kafa'a being
dependent on occupation is a single hadith attributed to the Prophet.
According to this narration, the Prophet is said to have declared that
weavers and barbers are not to be considered as the kafa'a of others.
This means, therefore, that weavers and barbers cannot marry people
who belong to families that follow other professions. Nu'mani remarks
that this hadith is 'very weak' (intihai za'if) and adds that numerous
scholars of Hadith have argued that it is a later fabrication wrongly
attributed to the Prophet. How could the Prophet, who is considered
as a source of mercy for all, consider any members of his community
as despicable simply because they were weavers or barbers, Num'ani asks.[18]
Indirectly critiquing these anti-egalitarian reports, Nu'mani here refers
to several prophets before Muhammad as well as numerous companions of
Muhammad who engaged in occupations that some later fuqaha wrongly described
as 'low'. Thus, he notes that the prophet David was an artisan and that
numerous companions of Muhammad were weavers and carpenters.[19]

Nu'mani writes that
all legitimate (halal, jai'z) occupations are noble and praise-worthy
in God's eyes, and hence to claim that weaving, barbering and other
such trades are 'despicable' as some fuqaha have done, is completely
against basic Islamic teachings. Therefore, he argues, from a strictly
Qur'anic perspective, a person pursuing any legitimate profession may
be considered the kafa'a of any other similar person for purposes of
marriage. In this regard he quotes Mufti Kifayatullah, a leading Indian
Deobandi scholar, whom he singles out as one of the few Indian 'ulama
to have taken a correct position on kafa'a, as having declared in a
fatwa that 'To consider someone inferior simply because he follows a
legitimate is profession is opposed to the teachings of Islam'.[20]
In approvingly quoting Mufti Kifayatullah here Nu'mani does not deny
that several other leading Deobandi scholars, such as Ashraf Ali Thanwi
and Mufti Muhammad Shafi, had adopted a divergent stance by supporting
the dominant Hanafi position on kafa'a as being determined, among other
factors, by occupation. He also admits that Thanwi had gone so far as
to declare weavers and oil-pressers as 'low' castes. Yet, he claims,
in contrast to their Barelwi opponents, the Deobandi 'ulama have never
hesitated to correct each other's views. [21]Indeed, he does this himself
explicitly in critiquing the views of his fellow Deobandis, renowned
'ulama such as Thanwi and Shafi, on the matter of kafa'a.

Family, tribe or
ethnic group (nasb) have also been considered by several classical fuqaha
as well as Indian 'ulama as an essential basis for deciding kafa'a.
Yet, Nu'mani writes, not one of the several traditions attributed to
the Prophet that have been adduced for this purpose have been proved
to be fully genuine (sahih). They are all said to be 'very weak' and
even 'fabricated' (mauzu). Nu'mani examines five traditions attributed
to the Prophet that are generally used to argue the case for nasb to
be included in kafa'a. All of them, he contends, are fabricated, have
weak chains of narration (isnad) or else do not have any direct bearing
on the question of nasb in marriage. To illustrate his argument, he
focuses on one particular tradition, according to which the Prophet
is said to have laid down that all members of his Qur'aish clan are
of the same kafa'a; that all Arabs belong to the same kafa'a; that members
of one tribe are the kafa'a of each other; and that all people are of
the same kafa'a except for weavers and barbers.[22] Like other similar
reports, this one, too, Nu'mani claims, is not to be regarded as absolutely
authentic for it has a weak narrative chain. Indeed, several Islamic
scholars have insisted that it is 'completely fabricated'.[23] This
report is said also to completely contradict the teachings of the Qur'an,
the genuine prophetic traditions and the practice of the companions
of the Prophet, and, for that additional reason, is not to be regarded
as authentic. The Qur'an repeatedly stresses that all Muslims are equal,
and one such Qur'anic verse, Nu'mani writes, is said to have been specifically
revealed to the Prophet to refute the belief that people should marry
only within their own tribe.[24] Likewise, numerous genuine Prophetic
traditions are said to directly oppose the belief in nasb being essential
to kafa'a. Thus, several companions of the Prophet are said to have
married outside their tribe with the Prophet's consent. The
Prophet advised one of his followers, an Ansar from Medina, to give
his daughter in marriage to one of his closest companions, Bilal, a
freed black slave. Abu Bakr, the first caliph, accepted the marriage
proposal of Salman Farsi, a Persian companion of the Prophet, to marry
his daughter. All this very clearly proves, Nu'mani writes, that it
is indeed legitimate to marry outside one's ethnic group or caste and
that the bar on such marriages placed by numerous fuqaha is not Islamic.

Despite the clear
evidence in the Qur'an and the Hadith that nasb is not to be included
in kafa'a, Nu'mani notes that several fuqaha have expressed contrary
opinions. However, he writes that there is no complete consensus among
the fuqaha on the matter. Thus, Imam Malik as well as some Hanafi 'ulama
did not include nasb in establishing kafa'a, while Imam Abu Hanifa and
Imam Shafi' did so.[25] There are conflicting views on Imam Ahmad ibn
Hanbal's opinion. According to one report he ignored nasb in establishing
kafa'a, while according to another report he regarded all Arabs as being
equal for marriage purposes, and all non-Arabs ('ajamis) as equal, thus
forbidding marriage between Arabs and non-Arabs. Nu'mani argues that
those fuqaha who included nasb in kafa'a probably did so because of
the particular social conditions prevailing at their time. However,
he adds, because of the 'unnecessary importance' which the contemporary
Indian 'ulama give to nasb, 'numerous social problems have been created'
and non-Muslims are 'getting a wrong message' about Islam. Hence, he
appeals for 'serious thinking' on the matter of nasb in establishing
kafa'a. A mark of the remarkable flexibility of Nu'mani's approach to
fiqh is his approval of the few Indian Hanafi 'ulama who have adopted
the position of Imam Malik on the question of nasb in kafa'a in their
fatwas instead of blindly following the dominant Hanafi position.[26]

Further on the question
of linking nasb to kafa'a, Nu'mani deals with the distinction that many
Hanafi scholars have established between old Muslims (jadid al-islam
musalman) and new Muslims (jadid al-Islam musalman), and arguing that
the two may not intermarry because they are not the kafa'a of each other.
According to these scholars, a man who converts to Islam cannot marry
a woman who was born to a Muslim father. The son of a convert to Islam
cannot marry a woman whose paternal grandfather and father were Muslims,
but the grandson of a convert can marry a woman from an 'old' Muslim
family. Accordingly, a convert to Islam can only marry a fellow convert.
This holds true only for non-Arabs, there being no distinction between
'old' and 'new' Muslims for Arabs.[27]

Nu'mani sees this
restrictive provision as making life for converts to Islam even more
difficult and, therefore, making conversion to Islam a difficult choice
for non-Muslims. By making this distinction between 'old' and 'new'
Muslims, he says, 'rather than welcoming our new guests we are insulting
them'.[28] Accordingly, he fervently appeals to his fellow 'ulama to
relax or abandon this rule, which in any case he sees as having no sanction
in Islam. He reminds them that because they insisted on this un-Islamic
provision, a large group of Hindus of the Tyagi caste in northern India
who were ready to convert to Islam finally decided not to because the
Muslim Tyagis refused to intermarry with them on the grounds that 'old'
Muslims could not establish marital relations with converts. Likewise,
Nu'mani writes, it was because of the discriminatory and anti-Qur'anic
rules that the 'ulama have devised on kafa'a that Dr. Ambedkar, the
leader of the 'low' caste Dalits, declined to convert to
Islam, choosing Buddhism instead.[29]

Nu'mani admits that
some of his fellow Deobandis have argued that 'old' and 'new' Muslims
are not of the same kafa'a and so cannot intermarry. In addition, he
notes that they have also argued that Muslims from different castes
cannot marry on the grounds of not belonging to the same nasb. Yet,
Nu'mani refuses to be bound by their views. In order to press his claim
that nasb should not be regarded as an essential factor in determining
kafa'a he points to alternate opinions within the broader Deobandi tradition.
Thus, he refers to fatwas by such scholars Mufi Kifayatullah and Sayyed
Sulaiman Nadwi asserting that nasb was not to be considered as essential
component of kafa'a,[30] and that a convert could indeed marry into
a family of 'old' Muslims on the grounds that all Muslims are equal.[31]
Nu'mani notes the existence of what he calls 'very weak' prophetic traditions
stressing nasb in kafa'a, but says that in their light 'at the most'
what can be said is that it might be better to
marry within one's ethnic group or caste (biraderi) than outside. However,
he says, this clearly does not mean that marriage must only take place
within one's caste but only that marrying outside one's caste is not
disallowed by the shari'ah.[32] If marriage outside one's caste were
thus to be recognized, Nu'mani suggests that it would promote Muslim
unity, help converts to Islam find spouses within the Muslim community,
and counter the perception among non-Muslims' of the existence of caste
discrimination among Muslims.[33]

After reviewing
the writings of the classical fuqaha and some influential twentieth
century Indian Hanafi scholars on kafa'a being determined by wealth,
occupation and ethnicity, Nu'mani writes that, notwithstanding their
differences, all the schools of Sunni jurisprudence are agreed that
piety should be a determining factor in deciding kafa'a in marriage.
'It should not be', he writes, 'that a pious girl who regularly says
her prayers and keeps her fasts should be married to a criminal' simply
because he belongs to the same ethnic or occupational group. He approvingly
refers to some classical fuqaha who opined that the piety was to be
the only determining factor in selecting a marriage partner. In order
to further support his contention that piety alone should be the criterion
for kafa'a he quotes a Prophetic tradition to the effect that a marriage
proposal from a man of high morals should be accepted, otherwise it
would lead to strife.[34] In another hadith the Prophet is said to
have warned against marrying a woman simply because of her beauty or
wealth. Her good looks might lead her to evil ways, while her wealth
might make her rebellious and proud. On the other hand, a pious black
slave girl, Muhammad declared, made a much better marriage partner.
Thus, Nu'mani concludes, the Qur'an and the genuine prophetic traditions
clearly suggest that it is piety alone that should be basis of kafa'a,
with other factors 'having no real importance'.[35]

In effect, then,
by subjecting the existing corpus of fiqh and the writings of the classical
and later Indian 'ulama to a critical reading, Nu'mani argues for the
need to go back to the Qur'an and the genuine Prophetic traditions to
develop a new fiqhi perspective on kafa'a and caste. By appealing to
the radically egalitarian social ethics contained in the Qur'an and
the genuine Prophetic traditions, by subjecting some traditions that
seem to promote social inequality to a critical contextual reading,
by dismissing anti-egalitarian traditions as inauthentic, and by pointing
out the divergent views of the fuqaha and 'ulama of different schools
of jurisprudence and within each school on the matter of kafa'a, Nu'mani
argues that piety alone should be considered as the essential basis
of kafa'a. In this way, he critiques both the notion of caste as well
as the arguments of the fuqaha who have sought to incorporate caste
as a major factor in deciding kafa'a and thereby grant caste a
certain religious legitimacy.

Conclusion

As this paper has
sought to show, although the Qur'an and the genuine Prophetic traditions
suggest a radically egalitarian social vision, actual Muslim social
practice, including in India, points to the existence of sharp social
hierarchies that numerous Muslim scholars have sought to provide appropriate
'Islamic' sanction through elaborate rules of fiqh associated with the
notion of kafa'a. This was further boosted by distorted interpretations
of the Qur'an and the invention of reports attributed to the Prophet
that sought to legitimize social inequality based on ethnicity and occupation.
In the Indian context, numerous leading 'ulama, almost all from the
'high' castes, have used these arguments to sanction caste and caste-based
distinctions, particularly in matters of marriage. Yet, as Nu'mani's
case shows, today at least some Indian 'ulama are willing to critically
examine the corpus of medieval fiqh and seek inspiration and guidance
directly from the Qur'an and the genuine
Prophetic traditions instead, in order to recover the original Islamic
vision that is robustly opposed to social hierarchy determined by birth,
the very basis of the caste system.